182 S.E. 579 | W. Va. | 1935
This is an original proceeding in prohibition to inhibit the enforcement of a judgment quashing an execution.
In an action by (petitioner) Nelia G. Bell against (respondent) M. M. Bell, before a justice of the peace of Randolph County, judgment was rendered September 26, 1932, in favor of the defendant. On October 6th, following, the justice approved an appeal bond filed by plaintiff and granted an appeal. Six days later he transmitted the papers to the clerk of the circuit court. The appeal having been docketed, defendant, in February, 1933, moved its dismissal upon numerous grounds, including the following:
"It is apparent from the record that the cost which the law requires the appellant to pay to the Clerk of the Circuit Court did not accompany the transcript as required by law *485 in that the Clerk of the Circuit Court while receiving the papers on December 1, 1932," did not docket the appeal until February 7, 1933.
November 8, 1933, the motion was overruled. A trial of the appeal, June 4, 1934, resulted in a verdict of $48.00 for the plaintiff. A motion to set aside the verdict being overruled, judgment was entered thereon June 8, 1934, to which no exceptions were noted. The judgment and part of the costs having been paid, plaintiff caused execution to be issued for the remaining costs, amounting to $74.80, November 13, 1934. On January 10, 1935, defendant, after notice to plaintiff, moved the circuit court to quash the execution on the ground that he was entitled to credits thereon aggregating $12.30. A hearing on the motion having been continued until January 19th, defendant at that time assigned as an additional ground for relief alleged failure of plaintiff to deposit with the justice $5.00 for the fee of the clerk of the circuit court, required by chapter 35, Acts 1931 (as construed in Van Faussen v.Kanawha Auto Loan Co.,
The ruling complained of in this proceeding is attempted to be justified by the decision in Van Faussen v. Kanawha AutoLoan Company, cited. That case, as already indicated, involved an interpretation of chapter 35, Acts 1931, which (according to the ruling therein) requires payment in advance of fees to the clerk of the circuit court, including a fee *486 of $5.00 in a "civil appeal to such clerk (appellant — to accompany transcript) * * *." The defendant there had attempted to obtain an appeal from a justice by filing an appeal bond and depositing with the justice a worthless check to cover the $5.00 fee. The justice granted the appeal and forwarded the transcript, accompanied by the check, to the clerk of the circuit court. The clerk, upon dishonor of the check, returned the transcript to the justice who immediately issued an execution on the judgment. The defendant then applied to this Court for a writ of prohibition to prevent the enforcement of the execution. The writ was refused upon the ground that the deposit of the $5.00 fee with the justice is a prerequisite to the perfecting of an appeal. It will be observed that the instant case, involving a collateral attack upon the final judgment of a court of general jurisdiction, presents an entirely different situation.
The judgment of a court of record is not subject to collateral attack unless a want of jurisdiction is apparent upon the face of the record. "The validity of a judgment of a court of record can not be collaterally attacked, on the ground that the court had no jurisdiction, unless the want of jurisdiction appears upon the face of the record."Wandling v. Straw,
The peremptory writ of prohibition is, therefore, awarded.
Writ awarded.